[align=left]
Section 265 (a) of the Code of Criminal Procedure, which is relevant
here, only applies in the exceptional case of a conjunction of very
important and predominant extenuating circumstances. In order to
establish the facts objectively and completely the Commission should,
in the Government's view, have taken into consideration the practice
of the Austrian courts, which, it is said, are not in the habit of
passing sentences appreciably lighter than the legal minimum in cases
of damage amounting to several million schillings. Furthermore the
Government points out that the Austrian Criminal Code also lays down a
number of aggravating circumstances in Sections 43-45. Lastly, a
purely mathematical calculation relating the sentence to the amount of
damage for which the accused is responsible would in the Government's
view have unacceptable consequences.

22. The third criterion, too, is said to be ill-suited to
consideration of the present case : it introduces differential
treatment in the application of the provisions of law relating to
release pending trial, a result which is incompatible with the
principle of equality before the law enshrined in Section 7 of the
Austrian Constitution and Article 7 of the Universal Declaration of
Human Rights.

Moreover, in order to apply the criterion it would be necessary to
establish exactly what effect detention had had on Neumeister's life.
The Commission is said to have neglected to do this. It has not put
forward any arguments in support of its conclusion that the
deterioration in the Applicant's financial position was mainly or
entirely due to his detention; in this respect it has merely cited his
unsubstantiated statements and an isolated passage from a decision of
the Judges' Chamber of the Regional Criminal Court of Vienna.
Similarly, the Commission is said not to have given any details of the
difficulties which Neumeister claims to have encountered in preparing
his defence. More generally, it has lost sight of the fact that any
detention necessarily entails hardships for the detained person.

23. According to the Government, in connection with the fourth
criterion, the Commission has presented no more than part of the
result of its investigations, without mentioning in particular certain
facts of which it was aware and which, properly viewed, would have
cast a different light on the Applicant's conduct.

The Commission is said to have made the mistake of applying the fourth
criterion from a subjective angle, forgetting that the attitude of an
accused during proceedings is an objective factor. It is true that
Neumeister did not try to slow down the proceedings by his appeals.
Nevertheless, they did cause delays, since on each occasion the record
had to be handed over to the competent authorities. Moreover,
Neumeister is said to have done nothing to speed up the proceedings.
On the contrary, he did not give an accurate account of his part in
the transactions in question.

The Government lastly points out that, although the fourth criterion
also covers the conduct of other accused persons, the Commission has
considered the Applicant's behaviour in isolation. The Government
holds that if several persons suspected of complicity are prosecuted
simultaneously, each must bear the consequences of the others'
actions. It therefore complains that the Commission has considered the
prosecution of the Applicant separately from the rest of the case,
whereas the Investigating Judge, when giving evidence before it as a
witness, stated that the reason why he had not investigated
Neumeister's case separately was that some of the offences with which
he was charged were inextricably bound up with the activities of the
other accused. According to the Government the Commission would, if
its fact-finding had been complete and correct and its application of
the criterion legally accurate, necessarily have expressed the opinion
that the length of detention had been reasonable.
[/align]